« "China Sentences Man To Year In Jail For Ringing Exam Bell 5 Minutes Early" | Main | Sandy requires SCOTUS to rework schedule for hearing two criminal cases »

October 29, 2012

Split Ninth Circuit panel reverses death sentence for murder on row since 1978

As reported in this Los Angeles Times piece, a Ninth Circuit panel on "Monday overturned the death sentence of California’s longest serving death row inmate on the grounds that his defense lawyer failed to investigate and present mitigating evidence during the penalty phase of his murder trial."  Here is more:

A three-judge panel of the 9th Circuit U.S. Court of Appeals decided 2-1 that Douglas R. Stankewitz, convicted of murdering Theresa Greybeal in Fresno in 1978, should be re-sentenced to life without possibility of parole unless prosecutors retry the penalty phase of his murder case....

The 9th Circuit majority said Stankewitz’s lawyer presented only a “paltry” amount of evidence in trying to persuade jurors against a death sentence, ignoring extensive documentation of the defendant’s “deprived and abusive upbringing,” potential mental illness, long history of substance abuse and use of drugs leading up to the murder....

Judge Raymond C. Fisher, writing for the court, said the jury might have opted for a life sentence had it learned of Stankewitz’s life story and his heavy use of drugs in the hours before the murder. Stankewitz's defense lawyer “did not obtain a psychological examination of Stankewitz, despite his belief that Stankewitz was not mentally competent, and did not pursue any of the evidence of Stankewitz’s history of drug and alcohol abuse,” wrote Fisher, a Clinton appointee....

Judge Diarmuid F. O’Scannlain, a Reagan appointee, dissented. O’Scannlain contended the lower court applied the wrong legal standard and argued that the case should have been returned to the district court for reconsideration under a different standard.

The full opinion in Stankewitz v. Wong, No. 10-99001 (9th Cir. Oct. 29, 2012), is available at this link.

October 29, 2012 at 10:55 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2017d3d1a96d1970c

Listed below are links to weblogs that reference Split Ninth Circuit panel reverses death sentence for murder on row since 1978:

Comments

"Judge Raymond C. Fisher, writing for the court, said the jury might have opted for a life sentence had it learned of Stankewitz’s life story and his heavy use of drugs in the hours before the murder."

Aren't drugs supposed to be "victimless?"

Posted by: Bill Otis | Oct 30, 2012 1:40:33 AM

// A three-judge panel of the 9th Circuit U.S. Court of Appeals decided 2-1 that Douglas R. Stankewitz…should be re-sentenced to life without possibility of parole unless prosecutors retry…The 9th Circuit majority said Stankewitz’s lawyer presented only a “paltry” amount of evidence in trying to persuade jurors against a death sentence, ignoring…
"abusive upbringing,”
*potential* mental illness,
long history of substance abuse…"

In my childhood, I would have expected that the 9th Circuit's justifications were irrelevant and insufficient to negate a criminal sentence, and that such might come from 5th grade teachers, but not from the seasoned jurists of a United States Court.

I would now hope that all intelligent and moral Americans are bruised and outraged by the injustice.


Posted by: Adamakis | Oct 30, 2012 9:23:42 AM

Even the dissenting judge agreed that an incorrect legal standard had been applied. He would have remanded instead of reversing outright.

This is a case in which the guy has been on death row since 1978.

The death penalty ain't working in California.

How many millions of taxpayer dollars have been poured into the effort to put this guy down?

Stop the madness. Abolish the death penalty.

Posted by: Stop the Madness | Oct 30, 2012 1:23:58 PM

"Stop the madness. Abolish the death penalty."

Stop the madness. Abolish gratuitious delay, dallying defense counsel, slow-motion judges and the toss-it-against-the-wall, run-the-meter theory of capital litigation.

Posted by: Bill Otis | Oct 30, 2012 1:43:29 PM

I don't think of Judge Bybee, a Bush appointee who joined in the majority opinion by Judge Fisher, as someone who would accept a "toss-it-agains5-the-wall" argument. And Judge O'Scannlain, who is one of the most conservative federal judges in the country, concurred with the initial decision remanding the case for an evidentiary hearing, so he didn't think habeas counsel was just "tossing it against the wall." In the majority opinion, Judge Fisher expressed unhappiness at the attorney general for asking for yet another chance at an evidentiary hearing, which the AG turned down when the Court of Appeals sent the case back to the district court eight years ago. If finality is so important, perhaps the State should just quit fighting it at this point. The case certainly does show one thing; everyone would have been better much off if Stankewitz had been sentenced to life thirty years ago, don't you think?

Posted by: decencyevolves | Oct 30, 2012 2:59:25 PM

decencyevolves --

"If finality is so important, perhaps the State should just quit fighting it at this point. The case certainly does show one thing; everyone would have been better much off if Stankewitz had been sentenced to life thirty years ago, don't you think?"

What I think is that we need a cap of ten years for DP litigation. Can you really say with a straight face that it takes 34 years to "discover" that the defense lawyer was deficient?

Well, can you?

Of course not. Every single item of comprising the alleged deficiency could have been fully fleshed out and litigated in a year or less.

As I said, time for a cap, on delay and on costs.

Posted by: Bill Otis | Oct 30, 2012 4:41:48 PM

well bill based on this the AG could have ended this 8 years ago but decided to go for it.

"Judge Fisher expressed unhappiness at the attorney general for asking for yet another chance at an evidentiary hearing, which the AG turned down when the Court of Appeals sent the case back to the district court eight years ago."

So sounds kinda silly to talk crap now about delays.

Posted by: rodsmith | Oct 30, 2012 5:00:05 PM

The length of time it takes to resolve these cases is less important to me than that the courts get it right, reversing cases when errors of constitutional dimension undermine the basic fairness of the conviction and/or sentence. Arbitrary caps on time and money, particularly low ones, and an attitude of "close enough for government work" shouldn't inspire confidence in anyone.

Posted by: decencyevolves | Oct 30, 2012 5:01:18 PM

decencyevolves --

We wouldn't need caps if there were a good faith, determined, continuing effort to resolve DP cases expeditiously.

Most unfortunately, since there isn't, we do.

P.S. At no point have I said "close enough for government work." That's your strawman creation. Instead, I asked, and you continue to refuse to answer, "Can you really say with a straight face that it takes 34 years to 'discover' that the defense lawyer was deficient?"

Can you?

Posted by: Bill Otis | Oct 30, 2012 7:26:02 PM

Not so fast, Bill. If you answer the question I asked you first: "The case certainly does show one thing; everyone would have been better much off if Stankewitz had been sentenced to life thirty years ago, don't you think?" then I will answer yours.

Posted by: decencyevolves | Oct 30, 2012 8:05:06 PM

Could be bill. IF the man is broke and has no real help. Might have taken decades for some future lawywer to see his case during some type of class research and say

Hell this would make a great project.

Posted by: rodsmith | Oct 30, 2012 8:17:18 PM

decencyevolves --

No, I certainly don't. The death penalty was just in this case. Lawyers, including lawyers who sit as judges, are too prone to think that their efforts are what makes the difference in the courtroom. I have been in courtrooms many times in criminal cases, and I can tell you that what makes the difference is the evidence.

Now I have answered your question.

Posted by: Bill Otis | Oct 30, 2012 8:40:05 PM

It doesn't take thirty years to discover such a deficiency, and for all we know, it may have been pled in a timely fashion decades ago. As to why it has taken the courts so long to resolve the issue, well you would have to ask them. It certainly wouldn't serve the issues of justice or timeliness to remand the case to give the State a second bite of the apple at this stage. I also know enough of capital trial work to tell you that good lawyering can make a huge difference, especially during the penalty phase. It's a shame that Stankewitz didn't get it, and a bigger shame that the California Suprem Court didn't correct this error when it had the chance, presumably a very very long time ago.

Posted by: decencyevolves | Oct 30, 2012 11:09:51 PM

One last point--good lawyers do investigation and find the evidence that may make a difference. Apparently, Stankewitz's didn't. I've seen cases far more aggravated than he one described in he Stankewitz opinion where thorough investigation and presentation of mitigating evidence resulted In a life sentence. It's a shame that the attorney in this case couldn't be bothered to try. That's not my idea of justice, even if it is yours.

Posted by: decencyevolves | Oct 31, 2012 3:36:07 AM

Well, it would've actually been best had Stankewitz been put to death 30 years ago. Moreover, the passage of time doesn't make him any less deserving of death now than three decades ago. The interests of justice are still served by punishing him for his barbarity.

Posted by: alpino | Oct 31, 2012 4:43:37 AM

decencyevolves --

Trials are held to reach judgments about out-of-court behavior, not to provide thespian amusement in which the courtroom is tha stage.

The lawyer is not on trial, and the lawyer didn't kill anyone.

To the extent the lawyer can do something significant -- to use an excessively charitable word -- it detracts, rather than adds, to the truth-finding function of trials for the lawyer to be ever-so-diligent in coming up with a (well-paid) shrink to testify about a newly discovered and very multisyllabic "syndrome" that now, years after the fact, is paraded before the jury in all its fake academic finery to explain away the grisly reality of the defendant's behavior.

Posted by: Bill Otis | Oct 31, 2012 6:14:07 AM


As Justice Stewart noted in Woodson v. North Carolina, 428 U.S. 280 (1976) "A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Id. at 304.

Mitigation evidence doesn't detract from the truth, it assists the jury in making a meaningful decision about whether a defendant gets a life or death sentence. And when an attorney whiffs on the investigation and presentation of mitigating evidence, the system has failed.

It doesn't sound like you've actually read the decision your critiquing. There is no fancy multisyllabic syndrome in this case, just a simple failure to produce evidence of the following sort (only a portion of which is quoted below from the Ninth Circuit opinion):

“The documents illustrate that Stankewitz was born into a poverty-stricken home described by police and probation reports as dirty, covered in cockroaches and fleas, and without electricity or running water. There was often not enough food for Stankewitz and his nine siblings, who were 'highly neglected.' A psychiatric evaluation of Stankewitz’s mother, Marian, confirms that she had been an alcoholic since she was a child and that she was severely intellectually impaired. Marian was arrested several times for crimes that include assault, grand theft auto and drunk driving, and she was ultimately convicted of voluntary manslaughter for shooting and killing a man while she was drunk at a party. According to Marian, after she got married, she would regularly drink three to four six packs of beer or two fifths of a gallon of whiskey in a night, including while she was pregnant with Stankewitz. A probation report described Stankewitz’s mother as 'incapable of caring for herself and all of her children and certainly incapable of caring for Doug.' Stankewitz’s father, Robert, was an alcoholic truck driver and leader of a motorcycle gang. According to his rap sheet, he was arrested several times between 1951 and 1968 for crimes that include wife beating, robbery, non-support, public drunkenness, forgery, disturbing the peace and contributing to the delinquency of a minor. A judge described Robert as an 'outlaw' and 'a definite menace to society' who had 'low intelligence,' was 'without education,' had 'no respect for the rights or feelings of other [sic]' and 'like[d] violence.' According to Marian, Robert severely beat her while she was pregnant with Stankewitz, knocking her to the ground, kicking her stomach several times and breaking her nose. After Stankewitz was born, he and his siblings witnessed Robert beat and threaten to kill Marian and attempt to run her over with a car. On another occasion, Robert pulled a gun on Marian and fired several shots between her legs. Robert and Marian separated in 1966, when Stankewitz was eight, because of Robert’s brutal attacks. According to Stankewitz’s sister and aunt, both of Stankewitz’s parents regularly beat all of their children. Robert often whipped them with a belt. On one occasion he came into the house in the middle of the night with a gun and threatened to shoot one of Stankewitz’s brothers. Marian often used electric cords or belts, and once even pulled a gun on Stankewitz’s sister. They beat the children more if any of them cried. Stankewitz was removed from his home at age six, after his mother gave him 'a severe beating' with an electrical ironing cord.”

This is the kind of evidence that could have made a difference to jurors in deciding whether a 19 year old convicted in a single victim homicide should get a life sentence or a death sentence. You may not think so, but even condemned inmates, convicted of capital murder, should get a fair sentencing trial.


Posted by: decencyevolves |

Posted by: decencyevolves | Oct 31, 2012 2:28:41 PM

decencyevolves --

You illustrate exactly why I say that keeping this travesty going for over three decades should not be allowed. As time passes, the murder victim fades to black (as she has in your post), and the focus -- nay, the obsession -- becomes solely a narrative about the woe-begotten life of the defendant.

I do not disagree with Justice Stewart that adequate attention be given the character and circumstances of the killer. But where, as here, we know we have the right guy, the show needs to close after more than thirty years. Adequate attention does not mean throwing every other considertion out the window, but that's what has happened here.

There is just no balance in your view of this case. He did it; a jury that knew the case better than you or I (or the Ninth Circuit) imposed death. This competence of counsel issue could, as you have conceded, been resolved in no more than a year. Speculation that more info on how sympathetic(?) this guy is MIGHT have swayed the jury is insufficient, so absurdly late in the day, to justify continuing this saga.

Posted by: Bill Otis | Oct 31, 2012 10:39:21 PM

I guess I'm at the stage where I'm not getting your arguments. Constitutional errors aren't obviated when the courts take a very long time to address them. I agree that everyone in the case would have been better off if the California Supreme Court had corrected the error in a more timely fashion in the first place. I've never said or implied that errors of this kind can be fully investigated, raised and litigated in a year. In fact, I would be shocked if claims that are found to be meritorious on this issue are ever resolved nearly that quickly, in any jurisdiction.

Issues of guilt certainly impact on the penalty phase determination, but no defendant would ever win a life sentence at penalty phase, and there would be no point of a sentencing trial anyway, if the mere fact that the defendant already had beens found guilty was necessarily outcome determinative.

Penalty phase work is important, and for the adversary system to work properly, it is necessary that capital defense attorneys expend effort in the penalty phase on mitigation. You don't seem to be disagreeing on that point, so perhaps this conversation has reached its logical conclusion.

Posted by: decencyevolves | Nov 1, 2012 5:47:48 PM

Decencyevolves,

I think this long thread has actually teased out in the most bare form I have seen Bill's essential problem with this whole process. It's not just the delays and inefficiency (which he often lays at the feet of defense counsel, although the courts and government always contribute mightily as well). It's that he just doesn't accept the holdings of the Lockett, Eddings line of cases -- or even Woodson and Roberts v. Louisiana. Those holdings are now broadly accepted as the bedrock that supports the constitutionality of the death penalty, but Bill's rhetoric is straight out of the losing side of the 1970s reenactment debates -- i.e., once the defendant is guilty of a capital crime, no mitigation can ever outweigh it and justify a non-death sentence. As you point out, though, that argument is invalid both doctrinally and empirically, as anyone who has observed capital trials knows.

The presence of Bybee as the other member of the majority tells anyone who is interested all they need to know about whether this is a 9th-Circuit "stretch" decision. It certainly isn't.

Posted by: Anon | Nov 2, 2012 4:51:00 PM

Anon --

"Bill's rhetoric is straight out of the losing side of the 1970s reenactment debates -- i.e., once the defendant is guilty of a capital crime, no mitigation can ever outweigh it and justify a non-death sentence."

You wanna quote the language where I state or imply that EVERY conviction for a capital crime should result in a death sentence?

Should I wait?

Didn't think so.

Anon, the losing side in the DP debate is yours. You want it judicially abolished. At one point you succeeded, but it lasted just four years, and you people have been bellowing BLOODLUSTER ever since Gregg took your victory away.

Since then, there have been over 1200 executions, and, extremist and ideologue that you are, you think every one of them was wrong. Good grief. Then you get on here and say I'm the one on the losing side, and I'm the one lacking in nuanced thinking.

Right.

It is not the case that everyone convicted of a capital murder should recieve the DP, as I have consistently believed and said. But it is very much the case that dragging things out for more than three decades so that we now speculate on what the defense lawyer maybe should have done and what the jury maybe would have thought is a travesty.

Reasonable expeditiousness is not the only value in the criminal justice system, but it is something not deserving of the down-the-nose dismissal you give it.

Posted by: Bill Otis | Nov 2, 2012 9:43:56 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB